Ram Chandra Yadav vs State Of U.P. And Others
2015 Latest Caselaw 456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										 AFR
 
Court No. - 26								
 

 
Case :- WRIT - A No. - 41357 of 2011
 
Petitioner :- Ram Chandra Yadav
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- R.B.Singh,A.K.Yadav,Ghanshyam Yadav
 
Counsel for Respondent :- C.S.C.,Akhilesh Kumar,Anuj Kumar,Harish Kumar Shukla
 

 
Hon'ble Manoj Kumar Gupta,J.

1. Heard Sri Alok Kumar Yadav counsel for the petitioner, learned standing counsel for the first and second respondents and Sri Akhilesh Kumar for the third and sixth respondents. No one has appeared on behalf of the fourth and fifth respondents, despite being sufficiently served and the matter being taken up in the revised call.

2. The petitioner applied for appointment as Shiksha Mitra in pursuance of an advertisement dated 29.11.2005. The Village Education Committee passed a resolution on 6 March 2006, whereby the name of the petitioner was recommended for appointment. The proposal was accepted and the petitioner was sent for training of one month commencing from 1 May 2006. The petitioner completed the training and was issued a certificate of having successfully completed the training (Annexure-4 to the writ petition). Thereafter, the petitioner joined as Shiksha Mitra in a primary school at Darideeha, District Basti since 1 July 2006. In the meantime, the fifth respondent filed a writ petition1 before this Court against the order of the third respondent (District Basic Education Officer) dated 24.5.2006. By the said order, the third respondent had recalled his earlier order dated 17.5.2006 restraining the petitioner from undergoing the training. In the writ petition, an interim order was passed on 24.7.2006 to the following effect:-

" Issue notice calling for counter affidavit returnable within six weeks.

Till further orders of this Court, no appointment of respondent no.5 Ram Chandra Yadav shall be made on the post of Shiksha Mitra in Prathmik Vidyalaya Dardeeha, block Basti Sadar district Basti, in pursuance of the impugned order dated 24.5.2006 (Annexure-14 to the writ petition) and one post of Shiksha Mitra shall be kept unfilled in the said institution."

3. In pursuance of the said order, the District Magistrate, Basti passed an order on 2 September 2006 restraining the petitioner from performing his duties as Shiksha Mitra. In compliance of the said order, it is common ground between the parties that the petitioner was not permitted to work any further. Ultimately, the writ petition filed by the fifth respondent was dismissed by this Court by judgment dated 19.1.2011. It was held that the District Basic Education Officer was not justified in restraining the petitioner from undergoing the training and that he had rightly recalled the order dated 24.5.2006. It was further observed by this Court that the District Magistrate has not passed any order in pursuance of the direction given by this Court by order dated 27.3.2006 in Writ Petition No.16651 of 2006. The said writ petition was filed by the fifth respondent challenging the selection of the petitioner and was disposed of by this Court by order dated 27.3.2006 directing the District Magistrate, Basti to decide the application filed by the fifth respondent by a speaking and reasoned order.

4. After the writ petition (W.P. No.31460 of 2006) filed by the fifth respondent was dismissed by order dated 19.1.2011, the petitioner made a representation dated 24.1.2011 before the second respondent for permitting him to resume his duties as Shiksha Mitra. The second respondent rejected the representation of the petitioner by the impugned order dated 8.7.2011. It was found that the name of the petitioner was included in the merit list prepared by the Village Education Committee followed by training and appointment as Shiksha Mitra. It has been further held that since 1.7.2006 the petitioner had worked as Shiksha Mitra and he continued as such until 12.9.2006, when on the basis of interim order passed in Writ Petition No.31460 of 2006, he was restrained from discharging his duties in the said capacity. It has been further noted in the order that Writ Petition No.31460 of 2006 filed by the fifth respondent was dismissed. However, the representation filed by the petitioner for permitting him to resume his duties as Shiksha Mitra has been rejected on the ground that the appointment of a Shiksha Mitra is for a period of 11 months only and after the enforcement of Government Order dated 2.6.2010, no fresh appointments can be made. It is concluded that in view of the said Government Order, it is no more possible to select/appoint the petitioner on the post of Shiksha Mitra. Challenging the said order, instant writ petition has been filed.

5. The main contention of learned counsel for the petitioner is that the Government Order dated 2.6.2010 is prospective in nature and would not apply to the petitioner, who was selected and was given appointment much before the issuance of the Government Order. It is further submitted that under the Scheme for appointment of Shiksha Mitras, there is a renewal clause, whereunder the tenure is renewed on yearly basis unless the work of a Shiksha Mitra is found to be unsatisfactory. It is thus contended that in so far as the petitioner is concerned, it would be a case of renewal of contract and not of a fresh appointment and thus, the bar under the Government Order dated 2.6.2010 would not apply.

6. On the other hand, learned standing counsel and Sri Akhilesh Kumar appearing on behalf of the respondents supported the impugned order. It is contended that since after enforcement of the Right of Children to Free and Compulsory Education Act, 20092 no person who does not possess TET certificate can be appointed as a teacher in a primary school and the Government Order dated 2.6.2010 was issued by the State Government to give effect to the provisions of the said Act. It is contended that the appointment of a Shiksha Mitra is for one academic session and, therefore, the petitioner cannot be given a fresh appointment and the District Magistrate was justified in passing the impugned order.

7. The nature of appointment of Shiksha Mitra under various Government Orders and the ambit and scope of the Government Order dated 2.6.2010 was subject matter of consideration by a Full Bench of this Court in the case of Km. Sandhya Singh and others Vs. State of U.P. and others3. Therein, the specific question referred to the Full Bench was as under:-

"Whether mere selection on a date prior to 02.06.2010 will confer a right upon the incumbent to claim appointment and for being sent for training as Shiksha Mitra even after the State Government has imposed a ban on such appointment on 02.06.2010 and the scheme of Shiksha Mitra itself has been dropped by the State Government."

8. After considering the Scheme of selection and various Government Orders issued from time to time, the Full Bench held that mere selection of a candidate will not confer a right to claim appointment. Before a person is sent for training and is asked to give consent on prescribed format to enter into contract, the selection process does not come to an end and all such cases will be covered by the Government Order dated 2.6.2010. It was held as under:-

"In addition to above, one of the conditions is the successful completion of the training. This is also indicative of the fact that the selection process will last up to the successful completion of the training and not before.

The upshot of the above discussion is that it is a misnomer to call the petitioners as selected candidates. The selection process will come to an end only when a person is asked to give his consent on the prescribed proforma to enter into a contract to serve as Shiksha Mitra and not earlier to it.

With regard to question (A), in view of the above discussion, we are of the opinion that the petitioners were not duly selected and even if they were selected, the selection will not confer a right upon them to claim appointment and for being sent for training as Shiksha Mitras in view of the ban imposed by the State Government by the GO dated 2nd of June, 2010. In other words, persons whose names even if recommended prior to 2.6.2010, will not acquire any right to claim a direction for appointment as Shiksha Mitra."

9. The necessary corollary of the law expounded by the Full Bench is that in a case where a Shiksha Mitra had undergone the training followed by formal appointment, the Government Order dated 2.6.2010 would have no application. In the instant case, it is not in dispute that the petitioner had undergone the prescribed training of one month and thereafter, was appointed as Shiksha Mitra in a primary school at Dardeeha, Basti. It is admitted in the impugned order that the petitioner had worked in the institution since 1.7.2006 until 12.9.2006 when he was restrained from performing his duties pursuant to interim order dated 24.7.2006 passed in the writ petition filed by the fifth respondent. Admittedly, the writ petition stands dismissed by judgment dated 19.1.2011. It has been pointed out that against the judgment dated 19.1.2011 the fifth respondent filed a special appeal4, which stands dismissed by order dated 22.2.2011. Since the petitioner was restrained merely on the basis of the interim order passed in the writ petition filed by the fifth respondent and thus, after the said writ petition was dismissed, the petitioner became entitled to resume his duties as Shiksha Mitra. It is well established that an act of the Court shall prejudice no one (actus curiae neminem grovabit). The Government Order dated 2.6.2010 would not apply to the petitioner, as the petitioner had been in employment as Shiksha Mitra since before coming into force of the said Government Order. The District Magistrate has erred in applying the Government Order dated 2.6.2010 to the case of the petitioner, who is not covered thereunder. Consequently, the impugned order dated 8.7.2011 cannot be sustained and is hereby quashed.

10. However, since the appointment as Shiksha Mitra is for one academic session only and the continuance in service is based on renewal granted by the authorities, which itself is dependent on satisfactory service of a person and, therefore, the matter is remitted to the District Magistrate, Basti for considering the case of the petitioner for renewal of his engagement as Shiksha Mitra strictly in accordance with the Government Orders issued in this regard from time to time. However, while considering such claim of the petitioner, the District Magistrate shall not be guided by the Government Order dated 2.6.2010, which, as held above, would not be applicable to the petitioner. The petitioner is granted liberty to approach the second respondent alongwith a certified copy of this order and within three weeks of filing of a certified copy of the order before the District Magistrate, Basti, he shall consider the case of the petitioner for renewal of his engagement as Shiksha Mitra.

11. Writ petition is allowed. No order as to costs.

(Manoj Kumar Gupta, J.)

Order Date :- 8.5.2015

SL